In Ontario the Rules allow for an order for an independent medical under Section 105 of the Courts of Justice Act. Rule 33.05 states that only the person being examined may be in attendance.
The Ontario rule 1 requires that the letter of instruction provided to the expert form part of the expert’s report. 2 The same is required in B.C. and Saskatchewan. Regardless of a particular rule, the expert is clearly intended to be impartial and to assist the court and not be an advocate of either party.
The expert rule does not apply to the report of the treating physician, referenced as a “participating expert”. 3
There is a preliminary basic issue with respect to the factual foundation on which the expert’s report is based. The question is whether the facts as presumed in the report, typically based on the interview of the patient- plaintiff with the expert may be accepted as fact or must be independently proven at trial.
The Supreme Court of Canada 4 stated that “the evidence of a physician stating what a patient told him about his symptoms is not evidence as to the existence of those symptoms. To accept it as such would be to infringe the rule against hearsay”.
The Supreme Court in 1990 5 qualified this decision 6 and declined to accept the view that “each and every fact relied upon by the expert must be independently proven and admitted into evidence before the entire opinion can be given any weight”.
Wilson J. stated that the more the expert drifts from the proven path of proven facts, the less weight may be paid to the opinion, but there must be some admissible evidence to establish the foundation for the opinion.
Sopinka J. in his concurring reasons distinguished hearsay statements from a party to the litigation and that which may be described as in the normal course of his expertise. Such statements provided to the physician by the immediate party must be proven independently. This becomes a question of what weight, if any, should then be given to the opinion.
The alternative, being professional judgment based in observations of colleagues in accordance with sound medical practices need not be so proven.
The above passage from Sopinka was applied in the British Columbia Court of Appeal case 7 in which the court required that the information given by the plaintiff to the independent medical examiner to be proven independently.
The party being examined has been held not entitled to the clinical notes of the IME as long as the consequential report references the findings. 8
All this being said, privacy legislation has allowed the patient the right to the clinical notes of the IME as set out case below. 9
The Federal Court of Appeal in its 2008 decision 10 and the Privacy Commissioner of Canada considered the request made by the insured party, to obtain the handwritten notes of a physician taken during an independent medical examination at the request of the insurer. The issue was whether such notes were personal information as such term is defined in the PIPEDA. If determined, the applicant would have the right to access such notes.
At first instance, the Privacy Commissioner had recommended that the notes be produced, which the physician refused to do. The Federal Court ordered that the insured be given access to the notes.
On further appeal, the Privacy Commissioner sought access only to the notes which recorded the answers given by the insured to the questions or notes which reflected the doctor’s observations of the plaintiff’s behaviour.
It was noted that Ontario’s medical privacy legislation does not apply to physicians performing independent medical examinations. The Federal Court of Appeal agreed with the submissions made by the Privacy Commissioner and ordered the notes in question be given to the insured to the extent that they constitute his “personal information”.
A similar request was made for the file of the IME by the Saskatchewan Office of Information and Privacy Commissioner. 11 It was noted that the Saskatchewan privacy legislation did not exclude IMEs as did the Ontario legislation. With certain exceptions not germane to the overall issue, the order was made in favour of the applicant.
The right of the insured to request that the IME be videotaped has become a controversial issue. The general theme of allowing the IME to be recorded is based on the applicant some proof of a likely bias of the examiner or the patient’s lack of ability to record the contents of the interview.
Typically a generic assertion of inherent unfairness is not sufficient. One would expect that there should be steps taken to assure no debate about what information was given by the patient in this context. Why a videotape would be presumed to be intrusive to the examination is not clear. This is particularly important in jurisdictions such as Ontario in which the patient is not allowed to attend with a companion or some other person to record the events. The sole note taker is then the examiner. Why is this presumed to be fair?
In 1989, the master allowed the plaintiff to tape record the examination. It was demonstrated that the physician selected for the IME had been proven to have shown a defence orientation and had demonstrated lack of accuracy.12
The master`s order was set aside on appeal after which the Divisional Court agreed with the court below. The Court of Appeal upheld the Divisional Court but in so doing Brooke J. A. stated that the master did have the inherent jurisdiction to make such an order where warranted. Doherty J. A. agreed in a separate concurring reasons. He also noted that where the tape recording would interfere with the ability of the medical examiner to obtain the information he or she requires to prepare a report, the tape recording should not be permitted.
He continued to note that the party seeking such an order to allow tape recording must show a good faith concern as to the reliability of either participant’s account of the statements made in the course of the IME. A method should also be proposed to record the examination and provide such in a timely fashion.
Mr. Justice Quigley, a decision in April of 2003 13 allowed the examination to be videotaped on the basis that the plaintiff would otherwise be disadvantaged. The defence provided an affidavit from the proposed expert psychiatrist, who stated that normally an examination as proposed involves an assessment of the “demeanour, affect, mood, weepiness, anger, sadness, body language, facial expressions, speech characteristics, varying voice tones, volumes and loudness, eye contact and facial expressions”.
He also agreed that he routinely makes notes, while the patient does not and in the case of a dispute as to his findings, the record would, in effect, be one-sided. The plaintiff provided a supporting affidavit from a psychiatrist, who stated that videotaping is unobtrusive and he had used this process for many years.
For the reasons of apparent fairness, the order was made allowing videotaping. It is to be noted that the proposed expert refused to provide the IME should such order have been met.
A similar order was made by the same justice in a 2007 decision, in which the plaintiff had suffered cognitive loss which, as asserted on the motion, would impair her ability to undergo such an independent assessment and raised concerns as to the reliability of her statements. The order was granted:14
The fact that the opposing party’s IME’s were not videotaped was considered grounds to dismiss the request made, a 2009 decision of Master Beaudoin. 15
The Bellamy decision of the Court of Appeal was re-considered by a five justice panel, in April of 2010.16
The plaintiff had supported the request for tape recording by an affidavit attaching a letter written by plaintiff`s counsel in which he expressed the view that defence medicals were used to gather admissions against interest from plaintiffs by a defence expert “in the guise of a defence health practitioner“. No specific allegation was made against the physician chosen to perform the medical.
On first instance, the motion was granted by Brockenshire J. in favour of the plaintiff. The Divisional Court noted that no specific allegation was made against the chosen physician, but upheld the prior decision. The Court of Appeal reversed, holding that systemic allegations are not sufficient to warrant such an order.
Master Short in his May 2010 decision 17 reviewed the plaintiff’s request for a videotaped psychiatric IME. The evidence of the expert chosen by the defence had been, on at least three prior occasions, disregarded by trial judges as showing a bias and on one case considered as “an advocate for the party calling him as a witness”.
The order made was to allow audiotaping of the IME to ensure objectivity of the examination.
The decision of Mr. Justice Wood in August of 2010 followed in which an order was made to allow videotaping of the psychiatric IME on the basis that a plaintiff’s own examination would be similarly completed. 18
The plaintiff showed evidence of psychological difficulties which would impair his ability to present his condition or history. The order was allowed provided that, given that the plaintiff had previously completed a psychiatric examination at his own initiative, that the plaintiff would be required to complete a subsequent examination, to be videotaped.
The British Columbia Court of Appeal, a decision released in December of 2006, considered the request that the psychiatric IME of a ten year old plaintiff be audiotaped. 19
The Court agreed that it had jurisdiction to make such an order, where circumstances required it, which would be “exercised rarely and with restraint, and only in circumstances where there is cogent evidence that the use of an audio tape recording will advance the interests of justice”. These factors were not seen in this instance.
The issue of the IME in a human rights context was considered in February of 2005 20 in which the employer sought an order allowing an independent medical examination, which the Tribunal declined due to lack of jurisdiction to do so.
The same conclusion was made by the Canadian Human Rights Tribunal 21 although it was not based on a conclusion that there was no jurisdiction to make such an order, but rather the respect for the dignity of the person. This, in turn, would require some proof that the IME was “necessary” for “a full and ample opportunity” to participate in the inquiry.
Regardless of the jurisdictional issue, one would expect that a respondent in a complaint faced with allegations of a medical nature in the case against it would naturally be able to defend its position by an IME as opposed to being required to submit to the unilateral assertion of its validity.
The Quebec Charter of Rights and Freedoms allows for an independent examination by order of the Tribunal. 22
In Saskatchewan, human rights complaints are now heard by justices of the Queen’s Bench and hence the same rules as a civil action are applied, allowing for the right of an IME. 23